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BLUNCHI v. COMMONWEALTH.
COURT OF APPEALS OF KENTUCKY
64 S.W. 971; 1901 Ky. LEXIS 584; 23 Ky. L. Rptr. 1185
October 30, 1901, Decided
PRIOR HISTORY: [**1]
Appeal from circuit court, Laurel county.
John Blunchi was convicted of the offense of selling native wine without license, and he appeals.
DISPOSITION: Reversed.
COUNSEL: W. L. Brown, for appellant.
Clem J. Whittemore and Robert J. Breckinridge, for the Commonwealth.
JUDGES: DU RELLE, J.
OPINION BY: DU RELLE
OPINION
[*971] DU RELLE, J. Blunchi was indicted and convicted for the offense of selling native wine without license so to do, such wine being an intoxicating beverage. A number of points were presented upon the motion for new trial, some of which we shall not consider, as being unnecessary to the decision of the case. The indictment was under section 1304, Ky. St., providing a punishment of not less than $20 nor more than $100 for any person who shall, without license so to do, sell or otherwise dispose of any spirituous, vinous, or malt liquors. By an act approved April 4, 1884, a local prohibition law was provided for the counties of Laurel, Rockcastle, Jackson, Owsley, and Clay, by which it was made unlawful for any person to sell, directly or indirectly, any spirituous, vinous, or malt liquors, wine, ale, beer, or other intoxicating liquors, or a mixture thereof, in the counties named. By an amendment approved May 12, 1884, it was provided [**2] that this local prohibition act should not apply to wines manufactured out of grapes grown in any of said counties. For appellant it is contended, under authority of Thompson v. Com. (Ky.) 45 S. W. 1039, 46 S. W. 492, 698, and Raubold v. Com. (Ky.) 54 S. W. 17, that the local prohibition act has not been repealed, but is still in full force; that after the original law took effect, no license could be granted by the county court of any of the counties named therein, because there was absolute prohibition for those counties, and, therefore, the penalty statute for selling without license did not, and could not, apply to any of those counties. It is further contended that when, by the amendment referred to, the local prohibition act was repealed as to sales of native wines in the five counties, that repeal left those counties without either a prohibition act or a penalty for selling without license as to native wines. We are not of that opinion. The question is not here presented whether a person who sells liquor in a locality which is under the general local option law, or under a special prohibition law, may be prosecuted either under such local option or prohibition law, or under [**3] the general penalty statute, for selling without license. Section 1304. But when the local prohibition act was repealed as to the counties named, in so far as it affected the sale of native wines, there was nothing to prevent section 1304 from applying in such counties to sales of such wines. There was nothing to prevent any such person obtaining a license to sell such wines, and if he sold without license there was nothing to prevent his punishment under section 1304. But the court instructed the jury to fix appellant's punishment at a fine of not less than $100 nor more than $200. The jury fixed the fine at $150. The instruction was erroneous, under section 1304. Nor do we think the error [*972] was cured by the action of the court, up on the motion for new trial, in sustaining the motion to the extent of $50 of the judgment, and overulling the motion for a new trial as to the remainder thereof. Under the Criminal Code of Practice (section 258), the jury is required to fix the degree of punishment in such cases, and the effect of this order was that the court fixed the punishment at the maximum permitted by the statute.
Wherefore the judgment is reversed, and cause remanded, with directions [**4] to set aside the judgment, and grant appellant a new trial.
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